NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
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No. 10-2153
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JAMES COTTER; WILSON LAND REALTY, LLC,
Appellant
v.
NEWARK HOUSING AUTHORITY
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On Appeal from the United States District Court
For the District of New Jersey
(Civ. No. 09-cv-02347)
District Judge: Honorable Joseph A. Greenaway, Jr.
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Submitted under Third Circuit L.A.R. 34.1(a)
January 24, 2011
BEFORE: FUENTES, CHAGARES, Circuit Judges, and POLLAK, District Judge*
(Opinion Filed: April 6, 2011)
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OPINION OF THE COURT
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Honorable Louis H. Pollak, Judge of the United States District Court for the Eastern District of Pennsylvania,
sitting by designation.

FUENTES, Circuit Judge.

James Cotter and his company, Wilson Land Realty, LLC, filed suit in District
Court alleging that the Newark Housing Authority ("NHA") is liable for breach of
contract, specific performance, promissory estoppel and equitable estoppel. The District
Court granted NHA's motion to dismiss on the grounds that (1) the allegations did not
show the existence of a valid contract; (2) specific performance is a remedy, not a claim;
(3) there was no allegation of the clear or definite promise necessary to successfully plead
promissory estoppel; and (4) there was no misrepresentation that would bestow contract
rights under a theory of equitable estoppel. Cotter and his company appeal each of these
rulings. For the reasons set forth below, we will affirm the District Court's order.
I.
We write exclusively for the parties and therefore recount only the facts necessary
to reach our decision.
In a 2001 settlement between Cotter and his former business partner, Cotter
received a right of first refusal over 30 acres of land owned by NHA in Newark, New
Jersey. In a January 2001 letter, NHA asked Cotter to submit an offer for 22 of those 30
acres. That same letter sketched the outlines of a possible agreement: Cotter would have
to give up his right of first refusal over the other 8 acres, which were then being used to
store demolition materials, and he would have to commit to constructing a building on
the property.
After an appraisal of the property, NHA sent Cotter a letter on March 15, 2001, in
which it stated that it was willing to sell him the 22 acres "as is" for the price of
2

$2,486,000. That same letter repeated much of what was stated in the January 2001
letter: NHA would give Cotter a "reasonable time period" to conduct due diligence,
Cotter would have to commit to constructing a 40,000 square foot building on the
property, and Cotter "must execute the standard [United States Department of Housing
and Urban Development ("HUD")] Disposition Agreement." (J.A. 22.) The letter also
requested that Cotter give up his right of first refusal over the 8 acres, which were then
leased to a demolition and recycling company.
In a June 1, 2001 letter, Cotter's counsel responded by providing a written
summary of his understanding of the agreement that had been reached between Cotter
and the NHA: Cotter would have the right to enter the property for testing and surveying
for at least 6 months, he would purchase the property for the appraised price, he would
construct a 40,000 square-foot building, and he would waive his rights over the eight
acres. NHA wrote back on June 4 that it would enter into a contract with Cotter subject
to approval by its Board of Commissioners. The June 4 letter agreed on the price, the
time for diligence, and the building. It also stated that, as a condition to any agreement,
Cotter would have to give up his right of first refusal over the eight acres. In the last
paragraph, the letter asserted that the parties would execute the standard HUD contract
according to HUD regulations.
Cotter gave up his rights over the eight acres and, in February 2004 NHA's Board
of Commissioners passed a resolution authorizing the sale of the 22 acres to Cotter for
the agreed-upon price. A March 17, 2004 letter from NHA informed Cotter of the
resolution. It also observed that "we had previously negotiated an agreement with
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[Cotter]." (J.A. 26). The letter enclosed a formal contract of sale and stated that Cotter
must close by May 1, 2004. In an April 13 letter, Cotter stated that he would be ready to
close on that date, but objected to provisions of the formal contract. The closing did not
take place in May 2004. In letters sent in 2005, Cotter complained to NHA that the
debris on the property prevented an environmental assessment. Cotter sent letters to
NHA in 2008 about proceeding to closing. NHA responded that the debris on the
property, and environmental concerns, continued to be problems.
Cotter filed suit against NHA in 2009. NHA moved to dismiss his Amended
Complaint, and the District Court granted the motion. According to the District Court,
the June 2001, March 2001, March 2004, and April 2004 letters were merely indications
of the parties' bargaining positions, not an agreement. Relying on Morton v. 4 Orchard
Land Trust, 849 A.2d 164 (N.J. 2004), the District Court concluded that the allegations in
the Amended Complaint did not sufficiently allege the existence of an agreement. It then
observed that Cotter's claim for specific performance is not an independent claim, but an
equitable remedy. As to promissory estoppel, the District Court ruled that there were no
allegations of a clear or definite promise, and hence no plausible claim. Finally, the
District Court decided that the Amended Complaint's claim of equitable estoppel was
insufficient because the letters described in the Amended Complaint did not bestow any
contract rights and there was no agreement over the sale.

Cotter filed a timely appeal.1 The District Court had jurisdiction pursuant to 28
U.S.C. 1332 and we have jurisdiction over the District Court's final order pursuant to
28 U.S.C. 1291.
II.
To plead a breach of contract in New Jersey, a plaintiff must allege that (1) there
was a contract, (2) that contract was breached, (3) the breach resulted in damages, and (4)
the person suing for breach performed his own contractual duties. Nat'l Reprographics,
Inc. v. Strom, 621 F. Supp. 2d 204, 222 (D.N.J. 2009) (interpreting and applying New
Jersey law). The issue framed in this appeal concerns the first element of the claim.
When do negotiations turn into a contract?2
The answer is only when there is a valid offer and acceptance. Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 250 (3d Cir. 2007); 4 Orchard,
849 A.2d at 170. Here there was neither. In its January 2001 letter, NHA stated "we
request that Cotter give us an offer to purchase." (J.A. 22, 45). This was not an offer, but
merely a request for an offer. Id. Similarly, the March 2001 letter from NHA said that
the Authority was "willing" to convey the 22 acres for $2,486,000, yet another signal that
NHA was ready to negotiate. (J.A. 22, 48.). Paragraph 23 of the Amended Complaint
1

We exercise plenary review over the District Court's order granting the NHA's motion to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). United States Dep't of Transp. ex rel. Arnold v. CMC
Engineering, 564 F.3d 673, 676 (3d Cir. 2009). This means that we accept the allegations in the Amended
Complaint as true and construe the allegations in the light most favorable to Cotter. Phillips v. County of Allegheny,
515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted). To survive a motion to dismiss, the allegations
must state a claim to relief that is "plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
2

As the District Court observed, when documents are integral to a complaint or explicitly relied upon, those
documents can be considered in determining whether the complaint states a plausible claim. In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). The letters referenced in the Amended Complaint are such
documents, and, as such, are considered as part of the Court's analysis.

references the June 1 letter Cotter sent to NHA, which states that an agreement had been
reached between the parties. But if this is an allegation that an agreement had been
reached, it is a legal assertion, not a factual one, which the District Court properly
ignored. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). The June 4, 2001 letter from NHA to Cotter stated
that "subject to final approval by the Authority's Board of Commissioners, the Authority
will enter into a contract" that will have certain features. (J.A. 24, 54.) The use of the
future tense makes it clear that, once again, NHA was simply setting the stage for the an
actual agreement. Nowhere does this letter allege an offer or acceptance.
The March 17, 2004 letter states that the parties had "previously negotiated an
agreement" but, once again, any allegation that an agreement had been reached is a legal
conclusion, not a factual one. (J.A. 9, 65). Later in the letter (and the allegation of the
Amended Complaint incorporating the letter), NHA pitched the following:
At this time, the NHA is requiring that if your client has a continued
interest in this property, it must close on or before May 1, 2004. Please
advise me before the close of business on April 15, 2004 if your client
desires to acquire this property in its current condition based upon the terms
and conditions of our proposed agreement.
(J.A. 9, 65). This is the first offera "manifestation of willingness to enter into a
bargain, so made as to justify another person in understanding that his assent to that
bargain is invited and will conclude it" alleged in the Amended Complaint.
Restatement (Second) of Contracts 24 (1981). Paragraph 34 of the Amended
Complaint then references an April letter in which Cotter stated that he was "ready to
close May 1, 2004" but then pointed to problems with the contract proposed in the March
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17 letter before drawing attention to a copy of the contract enclosed with "requisite
changes." (J.A. 10, 67). This was a counter-offer, which the next paragraph of the
Amended Complaint states was not executed by NHA. Fletcher-Harlee Corp., 482 F.3d
at 250; Restatement (Second) of Contracts 59 ("A reply to an offer which purports to
accept it but is conditional on the offeror's assent to terms additional to or different from
those offered is not an acceptance but is a counter-offer.").
With this factual and legal framework established, we agree with the District
Court that the Amended Complaint failed to state a plausible breach of contract claim
because the Amended Complaint nowhere alleged a valid offer and acceptance. As the
District Court concluded, this makes the instant case similar to 4 Orchard where there
was a course of dealing culminating in a "flurry of letters" but the context made it
apparent that the parties intended to be bound only by a written contract. 849 A.2d 164.
Here, the allegations are that no offer was made until March 17, 2004, that the offer
included a written contract, and that the offer was rejected in favor of a counter-offer.
"No offer and no acceptance means no contract." Fletcher-Harlee, 482 F.3d at 251. The
District Court properly dismissed Cotter's breach of contract claim because there was no
plausible entitlement to relief on such a claim, based on the allegations in the Amended
Complaint.
The District Court was also correct to point out that, without a contract, there can
be no claim for specific performance, which is an equitable remedy for breach of
contract.

We also agree with the District Court's decision to dismiss the claim for
promissory estoppel. In New Jersey, the elements of that claim are "(1) a clear and
definite promise; (2) made with the expectation that the promisee will rely on it (3)
reasonable reliance; and (4) definite and substantial detriment." Toll Bros., Inc. v. Bd. Of
Chosen Freeholders of County of Burlington, 944 A.2d 1, 19 (N.J. 2008). The problem is
that the only promises alleged in the Amended Complaint are promises to eventually
enter into a contract and a promise in the form of a contract that was rejected. Any
detrimental reliance on such promises was unreasonable.
Cotter's claim for equitable estoppel requires that he plead "a knowing and
intentional misrepresentation by the party sought to be estopped under circumstances in
which the misrepresentation will probably induce reliance, and reliance by the party
seeking estoppel to his or her detriment." O'Malley v. Dep't of Energy, 537 A.2d 647,
651 (N.J. 1987) (citing Horsemen's Benevolent & Protective Ass'n v. Atlantic City Racing
Ass'n, 487 A.2d 707 (N.J. 1985)). But here, there is no allegation of a misrepresentation.
The Amended Complaint alleges that NHA would entertain an offer, which it did, that it
would authorize a formal contract, which it did, and that it would send Cotter a formal
contract, which it did.
This case, like Fletcher-Harlee is a "cautionary tale" of offer and acceptance. 482
F.3d at 249. The appellant in Fletcher-Harlee, just like Cotter here, failed to sufficiently
plead a breach of contract claim and, also just like Cotter here, it asked for permission to
re-plead in a further amended complaint. Id. at 251. We said "no," reaffirming the longstanding rule that "in ordinary civil litigation it is hardly error for a district court to enter
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final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff has not
properly requested leave to amend its complaint." Id. at 253. As the court stated in
Fletcher-Harlee, this rule does not impose an undue burden on civil plaintiffs, who have
a ten-day window under Rule 59(e) in which they can file a motion to reopen the
judgment and amend the complaint. Id. Because Cotter's case is not different from
Fletcher-Harlee's in this respect, we find that the District Court committed no error. We
decline his request for permission to re-plead.
III.
We will affirm the ruling of the District Court. In short, the Amended Complaint
failed to allege the existence of a contract, a promise upon which reliance would have
been reasonable, or a misrepresentation. The District Court thus properly granted NHA's
motion to dismiss for failure to state a claim.

POLLAK, District Judge, dissenting.

The majority holds that documents exchanged between the parties do not plausibly
support the assertion that an agreement had been reached because whether an agreement
had been reached . . . is a legal assertion, not a factual one, which the District Court
properly ignored. Maj. Op. at 6 (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, Twombly and
Iqbal prohibit courts only from crediting a complaints [t]hreadbare recital[] of the
elements of a cause of action, supported by mere conclusory statements. Iqbal, 129 S.
Ct. at 1949 (citing Twombly, 550 U.S. at 570). Far from simply making a threadbare
recital of the elements of a breach of contract claim, the complaint here referenced
multiple documents in which both parties referred to an agreement, and it made factual
recitals of the actions that both parties took in reliance upon that agreement.
Accordingly, I respectfully dissent.